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New Jersey Lawyers' Fund for Client Protection v. Howard

April 14, 2010

NEW JERSEY LAWYERS' FUND FOR CLIENT PROTECTION, PLAINTIFF-RESPONDENT,
v.
OLIVIA HOWARD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3219-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 22, 2010

Before Judges Chambers and Yannotti.

Defendant Olivia Howard appeals from an order dated February 2, 2009, which enforced a settlement of this matter, entered judgment in favor of plaintiff, New Jersey Lawyers' Fund for Client Protection (Fund), in the amount of $175,000, and required defendant to pay $25 per month towards satisfaction of the judgment. We reverse.

Defendant was admitted to the Bar of the State of New Jersey in 1981. The Fund asserts that, in May 1995, Oakbridge Investments, Ltd. (Oakbridge) wired $200,000 to defendant's trust account at National Westminster Bank. According to the Fund, those monies were to remain in her trust account until Oakbridge instructed defendant concerning the disposition of the monies. Oakbridge filed an ethics complaint against defendant, alleging that she made disbursements of the funds without its authorization.

The Office of Attorney Ethics investigated the complaint, and found that defendant had improperly disbursed Oakbridge's monies to herself, a person named Amin Rashid (Rashid) and certain entities. Defendant was disbarred by consent on March 28, 2000. In re Howard, 163 N.J. 92 (2000). The Fund maintains that defendant consented to her disbarrment as a result of the Oakbridge matter.

Oakbridge filed a claim with the Fund seeking reimbursement of the monies that defendant wrongfully disbursed from her trust account. The Fund investigated the matter and determined that defendant had misappropriated, embezzled or stolen $200,000 of Oakbridge's monies. The Fund awarded Oakbridge $200,000 and on December 6, 2005, filed this action against defendant seeking reimbursement of the $200,000 it had paid to Oakbridge. Defendant filed an answer denying liability. She asserted, among other things, that Oakbridge was never her client and the Fund improperly awarded the monies to Oakbridge.

On November 14, 2008, the Fund filed a motion in the trial court to enforce a settlement allegedly reached in this matter. In support of that motion, the Fund's attorney, Edward T. Ehler (Ehler), filed a certification in which he stated that the matter had been scheduled for trial on October 27, 2008. After some discussion with the attorneys, the court directed the parties to return on October 29, 2008.

According to Ehler, over the next several days, he and defendant's attorney, Alan Dexter Bowman (Bowman), engaged in extensive negotiations and the parties reached a settlement, subject to approval by the Fund's Trustees at a meeting scheduled for November 19, 2008. Ehler said that the parties agreed to the entry of a consent order and judgment in favor of the Fund in the amount of $175,000, with an agreement by defendant to pay that amount in $25 monthly installments.

Ehler asserted that the Fund's agreement to the monthly payment plan was based on information that had been provided concerning defendant's financial circumstances, which defendant was to confirm by completing an information subpoena. According to Ehler, the parties agreed that the terms of the payment plan would be set forth in a letter rather than a consent order and judgment, and defendant wanted to review the language that would be included in the letter.

Defendant also wanted to review the consent order and judgment and the information subpoena. Accordingly, Ehler faxed a letter to Bowman on October 28, 2008, with the language concerning the payment plan. Ehler stated that Bowman told him that defendant had reviewed and approved the language, consent order and the judgment and information subpoena.

Ehler faxed another letter to Bowman on October 29, 2008, which confirmed that the case had been settled, subject only to approval by the Fund's Trustees. Enclosed with the letter were copies of the consent order and judgment and the information subpoena. Ehler asked Bowman to have defendant complete the information subpoena and return it to him by November 7, 2008. He also asked that the consent order and judgment be executed and returned by November 17, 2008.

By letter dated October 30, 2008, Ehler advised the court that the case was settled. In his letter, Ehler set forth the terms of the settlement, noting that it was subject to the approval by the Fund's Trustees at their November 19, 2008, meeting. Ehler asked the court to adjourn the November 17, 2008, trial date so that the Fund could approve the settlement. In a letter to the court dated October 31, 2008, Bowman confirmed Ehler's ...


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